Hell to the Redskins

Ross Kaminsky is the host of the Ross Kaminsky Show on NewsRadio 850 KOA in Denver, and a columnist and blogger for The American Spectator. He received his Bachelor's degree in Political Science from Columbia University in 1987 before embarking on his career as a self-employed financial markets trader.With strongly libertarian leanings, Ross has been actively involved in and thinking about public policy for 25 years, and served as a member of the Board of Directors of The Heartland Institute. An avid traveler, Ross has been to over 60 countries and is working to instill in his children an appreciation for and curiosity about the world -- along with a love of liberty and the (theoretically) freedom-loving nation they one day may have the ability to influence.

By a two-to-one vote, a three-judge panel of the U.S. Patent and Trademark Office has issued a ruling that eliminates trademark registration for six current trademarks of the Washington Redskins NFL team (including for the “Redskinettes” cheerleaders).

Its argument is that the trademarks “were disparaging to Native Americans at the respective times they were registered.” It notes that its ruling does not prevent the team from using those words and symbols, but that it would prevent standard federal protections against others using them, including against companies, whether in a garage in D.C. or in factory in China, making unlicensed apparel and other items using the logos without paying a fee to the team or to the league.

The PTO refused all of the team’s defense arguments including laches — a legal term basically meaning that (due to equity concerns rather than something like a statute of limitations) the plaintiff waited too long to assert his/its claim. However, in a similar case in 1992 in which the PTO also revoked Redskins’ trademarks for nearly identical reasons, a federal court overturned the ruling based on laches, a decision that was eventually upheld after appeal and rehearing. The courts never addressed whether the trademarks themselves are disparaging to Native Americans, though the first court to hear the appeal ruled that the evidence to prove such a claim was insufficient.

The case was brought by five Native Americans of different tribes; the PTO’s decision does not specify the tribal affiliation of one of them, saying merely that she “testified that she is a Native American.” (Didn’t Elizabeth Warren do something similar?) That particular plaintiff’s testimony includes “that the use of the term REDSKIN is analogous to the term ‘n****r,’ and that people should not profit by dehumanizing Native Americans.” Others said they found the team name “disparaging” and “offensive.”

After a tedious analysis of whether the term “Redskin” is disparaging, including “expert reports” that say just what you’d expect them to say, the PTO references several letters to current and former Redskins’ owners, such as this gem to Edward Bennett Williams in 1972:

Since you continue not to believe that the term “Redskins” is not [sic] offensive to anyone, let me make this clear: The name “Redskins” is very offensive to me and shows little human interest or taste. I am a Comanche Indian from Oklahoma. Indians are having enough trouble trying to erase misconceptions about themselves without having to be hit in the face with it every day in the form of a football team or baseball team. If you think you are preserving our culture or your history, then may I suggest a change? To live up to your name, your team would field only two men to the opponents eleven. Your player’s wives would be required to face the men of the opposing team. After having lost every game in good faith, you would be required to remain in RFK stadium’s end zone for the rest of your life living off what the other teams had left you. (Which wouldn’t be much.) Since you would probably find this as distasteful as 300,000 Indians do, I would suggest a change in name. In sticking to your ethnic theme, I would suggest the Washington N*****s as a start.… This would start a fantastic trend in the league. We would soon be blessed with the San Fransisco [sic] Chinks, New York Jews, Dallas Wetbacks, Houston Greasers, and the Green Bay Crackers. Great, huh? Mr. Williams, these would be very offensive to many people, just as Redskins is offensive to myself and others. You can take a stand that would show you and the team as true believers in civil rights, or you can continue to carry a name that keeps alive a threatening stereotype to Indian people. People, Mr. Williams. We don’t want the Redskins!

The “findings of fact” include that starting in 1966, dictionaries began noting that the term “Redskin” is “offensive, disparaging, contemptuous or not preferred” as well as listing a litany of objections against the team name by Native American groups. The PTO also states that “at a minimum, approximately thirty percent of Native Americans found the term REDSKINS used in connection with respondent’s services to be disparaging…” and continues to note that the law “prohibits registration of matter that disparages a substantial composite, which need not be a majority, of the referenced group.” They add that even if views of the term change when used in the context of football, that does not change the underlying offensiveness to those who feel offended.

Returning to the question of why the PTO would assume that a court would treat this ruling any differently than it did last time, the PTO notes that the 2011 America Invents Act “changed the venue for appeals” from the U.S. District Court of the District of Columbia to the U.S. District Court for the Eastern District of Virginia. Basically, they’re hoping that a new court will overturn the prior court’s ruling, and also hoping that something in the America Invents Act modifies the ability to use laches as a defense in the case. We’ll see. On one hand, courts do not love overturning precedent, especially when the second case is essentially identical to the first. On the other hand, this entire issue has become very political and, sadly, Chief Justice Roberts demonstrated that judges even at the highest levels can be influenced by what they read in the newspapers.

Administrative Trademark Judge Marc Bergsman dissented from the ruling noting that the case is not (or should not be) about “the controversy, currently playing out in the media, over whether the term ‘redskins’…is disparaging to Native Americans today.” (Emphasis in original.) Rather the test is whether the term was disparaging “at the time each of the challenged registrations issued.”Bergman also noted that the evidence used by the plaintiffs in the current case was basically just a resubmission of the evidence of the prior case, with the addition of brief testimony of a few current plaintiffs who said they found the term “redskin” offensive.

The district court that first reviewed the original PTO cancellation of the trademarks more than a decade ago ruled that there was insufficient evidence to do so, and Bergman wonders how using the same evidence could now somehow be sufficient. In short, Bergman says that while the term “redskins” may have been disparaging when the trademarks were registered, “the evidence petitioners put forth fails to show that it was.” Bergman also notes that up to at least 1978, only two dictionaries referenced the term as offensive and “two does not make a trend.”

For now, Harry Reid is happy to have 2 minutes to talk about anything other than his absolute failure as a Senate leader and his president’s absolute failure as a leader of any sort. (Who can lead with such tempting putting greens available and when we have pressing issues to deal with like climate change — while the planet isn’t warming — and LBGT discrimination among federal contractors?)

In today’s increasingly lawless America, it is no easy prediction as to whether the PTO’s ruling will be upheld or overturned by the courts.

If the law restricts the issuance of trademarks that are deemed to be disparaging at the timeby a substantial part of a substantially large group of people, then if that disparagement test can be proven the trademarks should indeed be cancelled. That said, one would think that the PTO would have considered the question of disparagement at the times the trademarks were applied for and found that it was not sufficient to stop registration. The burden of proof must be on the petitioners and must be quite substantial, especially given the enormous economic interests at stake and the sizeable investments in marketing and branding made by the Washington Redskins.

The legal issue is quite different, however, from the question of whether the team shouldchange its name and the issue of American hypersensitivity to everything. There’s no right not to be offended, and political correctness is an acid being poured on civil discourse and good government. Additionally, nobody seriously looks at the use of the name “Redskins” for an NFL team and thinks of anything other than strength and tradition (even when the ’Skins aren’t very good). One would think that a reasonable part of a test of whether a term is offensive is whether those using the term mean it that way. For these reasons, I hope that the PTO’s ruling is overturned.

If the trademark cancellations are upheld by the courts, Redskins’ owner Daniel Snyder might be forced, for financial reasons, to change the team’s name since the loss of license revenue (to himself and to the league) on a non-trademarked logo — sweatshirts and coffee mugs produced by pirate operations anywhere and sold as “official” gear without paying for the right to use the team name and related images — might be too expensive to tolerate (despite some suggestion that there may be other legal protections for the team’s use of those names and images).

While nothing would then be stopping anyone else from using the Redskins’ unprotected logos for their own purposes — perhaps even to tweak the PC police by using them for a new sports team — that’s not a particularly likely outcome.

Instead, if the PTO’s ruling stands, given the tendency of the forces of political correctness and “tolerance” to go too far, such as laws protecting workplace cross-dressing and allowing a boy who “believes” he’s a girl to use a school’s girls’ bathroom, one wonders whether every other Native American-referencing team name and logo — not only the many “Redskins“ around the country — will soon be under assault. And next will come any other corporate trademark that some “activist” wants to claim as offensive, to use as a punching bag to earn his own five minutes of fame.

For now, thinking like the trader that I am, perhaps a good investment would be a brand spanking new Washington Redskins jersey. It could soon be a collector’s item if the PC police, using a federal agency and spurred on by Democrats in Congress (much like the IRS Scandal), can end more than 80 years of Washington Redskins history.